Court of Appeal takes Tribunal Judges to school: Pay heed to importance of country guidance caselaw

It is most strange that it should staunchly be maintained before the Court of Appeal that Home Office Presenting Officers are aware of country guidance caselaw, yet a supposedly sufficiently experienced Home office Presenting Officer voluntarily made a concession that was inconsistent with relevant  country guidance caselaw with the result that, also placing  reliance upon that concession, an Upper Tribunal Judge allowed an appellant’s appeal.

Even stranger still is that it subsequently emerged that neither the Presenting Officer nor those that represented the Appellant had referred to nor relied upon applicable country guidance ceselaw in the Upper Tribunal.

Recognising the difficulty that the concession presented, subsequently,  the Secretary of State had no qualms about putting forward argument and applying in the Court of Appeal for a withdrawal of the concession.

AM (Iran) v Secretary of State for the Home Department [2018] EWCA Civ 2706 (06 December 2018) in the Court of Appeal, raised several interesting issues, including:

  •  the importance of country guidance caselaw in the consideration of asylum/Article 3 appeals
  • the effect of a concession made by a Home Office Presenting Officer that was inconsistent with the Country Guidance caselaw
  • The circumstances in which a concession made at a Tribunal hearing can be withdrawn
  • Effect of non – genuine self-serving blogging activities in the UK upon an appeal

 

Summary Background:

AM, an Iranian national, following his arrival in the UK in 2006 as an asylum claimant, with the asylum claim having failed, was subsequently granted anEEA Residence Card as a family member of an EEA national. The residence card was granted valid from 2009 to 8 December 2014.

On 5 August 2013 he was found guilty of the rape of a 17-year old girl on 28 September 2012, and sentenced to a term of five years imprisonment, with an order of indefinite registration on the sex offenders register.

Deportation proceedings were instituted by the Secretary of State. In short, a certificate was issued pursuant to Section 72 of the Nationality, Immigration and Asylum Act 2002 on the basis that AM had been convicted of a ‘particularly serious crime and constituted a danger to the community”. The effect of the certification was that upon his appeal being dismissed before the First Tier Tribunal Judge, AM was found to have been excluded from the protection of the Refugee Convention and a grant of humanitarian protection.

AM’s appeal ended up in the Upper Tribunal and by decision promulgated on 25 January 2017, an Upper Tribunal Judge concluded that deporting AM to Iran would place him at risk of ill-treatment in contravention of his rights under Article 3 of the European Convention of Human Rights (‘ECHR’).

The Secretary of State appealed to the Court of Appeal.

 

The Appellant’s problem:

AM had tweeted verses from the Bible and at one point, he had had 5,287 followers and ‘86,000 or so ‘likes” and there were 850 tweets. He argued that the effect of his tweets was that he would be viewed as Christian.

The problem however was that some of the factual findings of the First Tier Tribunal remained undisturbed, such as the finding that AM’s purported conversion to Christianity was found to have been fabricated in order to establish a claim that he would be at risk upon return to Iran as a Christian convert.

 

The Secretary of State’s concession before the Upper Tribunal:

The Upper Tribunal Judge had observed as follows in his decision:

“27. It was not disputed on behalf of [the Secretary of State] that if [AM] was thought to be a Christian convert, then he would be at real risk of ill-treatment. That is also the effect of the CIG to which I was referred, and which is consistent with other background evidence. It seems to me that there is a reasonable likelihood that the authorities would view the appellant as a Christian convert, with all that this means in terms of risk (emphasis added)”.

It was this paragraph, with its references to (1) a concession on behalf of the Secretary of State, (2) the effect of the CIG (Country Information Guidance) and (3) the extent of risk to someone viewed as a Christian convert, that lay at the heart of the Secretary of State’s appeal that gave rise to one of the grounds of appeal.

 

What the Upper Tribunal was argued to have done wrong:

Additionally, the Upper Tribunal Judge was noted to have recorded as follows in his decision upon allowing the appeal on Article 3 grounds:

“28. Furthermore, there is also a reasonable likelihood that the appellant would be viewed as someone involved in anti-Islamic conduct, even if it is accepted by the authorities that his extensive Christian twitter postings were merely opportunistic. As explained in SB [(risk of return – illegal exit) Iran CG [2009] UKAI 0053] at [45], such presents as a significant risk factor.

29. In all the circumstances, I am satisfied that the appellant has established that there is a real risk that on his return he would be questioned about the details of his asylum claim and that that questioning would reveal that he has posted on Twitter. For the reasons explained above, that interrogation would involve a real risk of ill-treatment amounting to a breach of article 3”,

What however the Upper Tribunal was argued to have done wrong was to fail to to consider the most recent applicable Country Guidance cases: FS and others (Iran – Christian converts) Iran CG [2004] UKIAT 00303 and SZ and JM (Christians – FS Confirmed) Iran CG [2008] UKIAT 00082.

It was submitted on behalf of the Secretary of State that the Upper Tribunal was required by Practice Direction 12 of the Immigration and Asylum Chamber to have regard to the Country Guidance determinations:

“12.2 A reported determination of the Tribunal, the AIT or the IAT bearing the letters ‘CG’ shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later ‘CG’ determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:

(a) relates to the country guidance issue in question; and

(b) depends upon the same or similar evidence.

12.3 A list of current CG cases will be maintained on the Tribunal’s website. Any representative of a party to an appeal concerning a particular country will be expected to be conversant with the current ‘CG’ determinations relating to that country.

12.4 Because of the principle that like cases should be treated in like manner, any failure to follow a clear, apparently applicable country guidance case or to show why it does not apply to the case in question is likely to be regarded as grounds for appeal on a point of law”.

It was put forward on behalf of the Secretary of State that the Upper Tribunal Judge erred in law in failing to refer to the relevant country guidance cases, FS and others (2004) and SZ and JM (2008); and that he should have done so notwithstanding that they were not referred to or relied upon by the parties.

 

What did the relevant country guidance caselaw state?

The case of FS and others (2004) provided clear guidance as to the correct approach to be adopted in relation to the position of Christian converts in Iran. At 187, the Upper Tribunal set out the position:

“187. For the ordinary convert, who is neither a leader, lay or ordained, nor a Pastor, nor a proselytiser or evangelist, the actual degree of risk of persecution or treatment breaching Article 3 is not sufficient to warrant the protection of either Convention. The reality is that a social and economic life can be maintained; Christianity can be practised, if necessary, cautiously at times, by Church attendance, association with Christians and Bible study. There may well be monitoring of services and identity checks. They would be able to practise, however, as most Iranian converts do. It is realistic to expect that there may sometimes be questioning, disruption, orders not to attend Church, which may require the convert to stay away for a while. But there is no evidence of a real risk of ill-treatment during such questioning or of anything more than a short period of detention at worst. There is evidence of random or sporadic violence by the likes of the Basiji, but at too infrequent a level to constitute a real risk to the ordinary convert. The longer official questioning, detentions, and the greater risk of charges, trumped up or menacingly vague or simply threatened are not a real risk for the ordinary convert.

188.We would, on the present evidence, regard them as not at a real risk of persecution or treatment breaching Article 3. We allow in that assessment for some recent worsening in the current climate.

189.We would regard the more active convert, Pastor, church leader, proselytiser or evangelist as being at a real risk. Their higher profile and role would be more likely to attract the malevolence of the licensed zealot and the serious adverse attention of the theocratic state when it sought, as it will do on some occasions, to repress conversions from Islam which it sees as a menace and an affront to the state and God”.

The subsequent case of SZ and JM (2008) confirmed this position. Part of the headnote reads:

“Conditions for Christians in Iran have not deteriorated sufficiently to necessitate a change in the guidance in FS [and others (2004)] …”

This part of the headnote reflected passages in the decision itself, including:

“9. At paragraph 184 [of FS and others (2004)], the Tribunal accepted that there was no real risk on return for someone who has simply been an asylum seeker. It cautioned against drawing conclusions by reference to the position of those who return merely as failed asylum seekers, when considering what may happen to those returning if the fact of conversion becomes known before or at the point of return. The Tribunal concluded that the evidence did not show that by itself would lead to ill-treatment, but found it could lead to questioning, warnings and the possibility that local police or vigilante groups, family and associates may be told. The Tribunal found that if there was hostility from families that would need to be considered in each case, but generally did not create a risk of persecution, although it acknowledged that it could make life more difficult.

………………..

148.It remains our view that for the ordinary convert (within the meaning which we have slightly modified from FS and others) there is a risk, but not a real risk, of serious harm if returned to Iran”.

 

What Home Office Country Information Guidance did the Upper Tribunal Judge refer to?

The Upper Judge referred to the Home Office Country Information Guidance, ‘Iran: Christians and Christian Converts’, dated December 2015, which provided relevantly:

“Christians converts

Christians who have converted from Islam are at risk of harm from the state authorities, as they are considered apostates – a criminal offence in Iran. Sharia law does not allow for conversion from Islam to another religion, and it is not possible for an individual person to change their religious affiliation on personal documentation. Christian converts face physical attacks, harassment, surveillance, arrest, detention as well as torture and ill-treatment in detention. The country guidance case of SZ and JM (Christians – FS confirmed) (2008) found that conditions for converts to sacrament-based churches may be such that they could not reasonably be expected to return to Iran. This remains the case”.

 

The Court of Appeal’s considerations:

  • It was observed that it was put forward on behalf of the Secretary of State that the Upper Tribunal Judge erred in law in failing to refer to the relevant CG cases: FS and others (2004) and SZ and JM (2008); and that he should have done so notwithstanding that they were not referred to or relied upon by the parties.
  • The Court of Appeal stated that in general, one would expect the parties to refer to any relevant Country Guidance (CG) cases, although the Court would also expect specialist Tribunal Judges to be aware of the relevant CG cases, or at least where they are to be found. The Practice Direction at §12.4 assumes as much.
  • In the present case, the Upper Tribunal Judge did not refer to either FS and others (2004) or SZ and JM (2008). He did, however, refer to three other cases dealing with the risks of return to Iran but one of the cases was not a CG decision and it was not clear why he referred to evidence given in that case: ie, that people are asked about their social internet activity and particularly their Facebook password, neither of which were matters that arose in the present case.
  • The Court of Appeal observed that it was unclear why the Judge thought that evidence given in what was not a CG case was to be given particular weight on the basis that the Secretary of State could not suggest why it could not be relied in the present case. CG cases are exceptions to a general rule that evidence in one case cannot be relied on in another case.
  • The Upper Tribunal was considered to have placed itself in danger of proceeding impermissibly on the basis of what it perceived to be binding concessions.
  • The ‘risk of harm’ (see the above Country Information Guidance) or ‘real risk ill-treatment’ (see Upper Tribunal decision) was rightly not treated by the Upper Tribunal as the end of the matter. It was for the Upper Tribunal to assess the extent of the risk as part of the decision. That called for a closely focussed assessment of AM’s particular position.
  • The Court observed that one difficulty in the Secretary of State’s argument on the appeal was the concession noted at §27 of the Upper Tribunal decision: that if AM were thought to be a Christian convert, he would be at ‘real risk of ill-treatment’. Recognising the difficulty that this concession presented on the appeal, the Secretary of State sought to apply to withdraw it. It was submitted that it would not be in the interests of justice to hold the Secretary of State to the concession.
  • The Court of Appeal accepted that the Court may, depending on the circumstances, permit a concession that was made in a Tribunal hearing to be withdrawn. Consideration on the point was given to Secretary of State for the Home Department v. Davoodipanah [2004] EWCA Civ 106 , paragraph 22 and AK (Sierra Leone) v. Secretary of State for the Home Department [2016] EWCA Civ 999, paragraphs 38 to 50.
  • In the Court’s view, the Secretary of State’s application to withdraw the concession made before the Upper Tribunal could not easily rely on principles of justice and fairness, particularly when it was sought to do so in a belated and informal way. It was stated that one would expect those who seek to withdraw a concession to explain both promptly and frankly why the concession was made, why it was mistaken and why it was now just and fair that they be allowed to withdraw it. It observed it to be striking that when the application for permission to appeal to the Upper Tribunal from the Upper Tribunal decision was made, the Secretary of State’s newly instructed and experienced counsel (who was not the counsel instructed before the Court of Appeal) did not seek assert that there was a mistake or seek leave to withdraw the concession. It was however noted that those who represented AM rightly accepted that a concession could be withdrawn if this were in the overall interest of justice.

 

The Court of Appeal’s conclusions:

  • Although the Secretary of State was fully entitled to the view that AM’s presence in the country was not conducive to the public good in the light of his conviction for rape, in the light of the possible infraction of his rights under article 3, his removal to Iran called for a close focus on the risks of removal. It was a case requiring a particularly close analysis of the relevant issues.
  • The implicit risks in his removal were that he would be regarded by the authorities as a Christian convert and as someone who would broadcast his Christian beliefs in Iran. Both of these possibilities had to be seen in the light of the finding that he was not in fact a Christian, and that he had deceitfully adopted the appearance of a Christian in his Twitter posts for the purposes of invoking international protection and avoiding removal to Iran.
  • The starting point for the assessment of risk were the CG cases of FS and others (2004) and SZ and JM (2008). It is not said that these cases have been superseded and FS and others (2004) was specifically referred to in the December 2015 CIG. In R (SG (Iraq) v. Secretary of State for the Home Department [2013], Stanley Burnton LJ expressed the position thus: 

    “46. The system of Country Guidance determinations enables appropriate resources, in terms of the representations of the parties to the Country Guidance appeal, expert and factual evidence and the personnel and time of the Tribunal, to be applied to the determination of conditions in, and therefore the risks of return for persons such as the appellants in the Country Guidance appeal to, the country in question. The procedure is aimed at arriving at a reliable (in the sense of accurate) determination.

    47.It is for these reasons, as well as the desirability of consistency, that decision makers and tribunal judges are required to take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so”.

  • FS and others (2004) and SZ and JM (2008) may have not been the most up-to-date source of information, but they were to be regarded as the most reliable analysis of the risks faced by Christian converts in Iran: “For the ordinary convert, who is neither … a proselytiser or evangelist, the actual degree of risk of persecution or treatment breaching article 3 is not sufficient to warrant the protection of either Convention”.
  • If the observation in [27] of the Upper Tribunal decision was to be understood as an observation that the fact that AM was thought to be a Christian convert rendered him liable to a risk of article 3 ill-treatment, it was unjustified. It was contrary to the Upper Tribunal Country Guidance caselaw in FS and others (2004) and SZ and JM (2008); and if the Home Office Country Information Guidance is to be read as a general observation that all returning Christian converts are at risk of article 3 harm, it overstated the position. It was troubling that the point appeared to have been conceded.
  • It was considered however, that the concession plainly did not ‘determine the entire appeal’. The Upper Tribunal regarded the crucial issue which bore on the particular risk to AM on his return was not his apparent (but false and deceitful) Christian beliefs; but the expression of such beliefs in his Twitter posts. The Upper Tribunal Judge was entitled to his view of the facts, so far as they went. However, he relied on the decision in AB and others (2015) which was not a case dealing with Twitter posts, and did not consider the questions whether the posts could be deleted and what the effect of deleting them would be. When giving leave to appeal, the single Lord Justice considered that the possibility of deletion was ‘a common-sense consideration’ and that the Upper Tribunal’s omission to consider these questions was one of the factors that satisfied the second appeal test, the other being the failure to have regard to the two CG cases FS and others (2004) and SZ and JM (2008). The Court of Appeal accepted that this point should have been raised on behalf of the Secretary of State, but the matter should plainly have been investigated.
  • In these circumstances, the Court of Appeal allowed the Secretary of State’s appeal; and remitted the case to the Upper Tribunal for AM’s appeal to be considered in the light of their judgment.
  • The Court of Appeal also added that directions should be sought as to the admission of any evidence and further specific submissions on the Twitter issue. The Court also stated that, without in any way seeking to discourage properly made concessions being made before tribunals, the Court regarded it as being in the overall interest of justice that the Secretary of State be permitted to clarify the nature and extent of the concession that he wished to make in relation to the return of Christian converts to Iran which, for the reasons the Court had indicated, were unclear. 

Conclusion

The Court of Appeal decision is an eye opener for those newly introduced to asylum law and are yet to grasp the importance and relevance of Upper Tribunal Country Guidance Caselaw, List of County Guideline determinations as well as Home Office Country Information Notes/Guidance, https://www.gov.uk/government/collections/country-policy-and-information-notes

The judgement is also a good introduction on the consideration of risk issues for those Iranian nationals who have converted to Christianity or believe would be so viewed upon return to Iran.

The Court of Appeal decision additionally serves as a lesson  to practitioners to include  at all times within Appellant Bundle the existing country guidance caselaw that applies in the circumstances of a case, whether or not it is favourable to an appellant’s case. Not only to include relevant caselaw and Home Office country information notes  but to engage with it during the course of an appeal. If the caselaw seems unfavourable to the claim or appears “out dated” then care and skill should be utilised to source current and updated background information to drive home risk issues and/or seek to source country expert evidence.

As for Tribunal Judges, the lesson to them from the Court of Appeal is clear: as reiterated, to,  “take Country Guidance determinations into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so”.

 

 

 

 

Part 2: How not to fall foul of the new application process and ensure a valid Home Office application

(1) STATEMENT OF CHANGES OF 11 OCTOBER 2018

The Explanatory memorandum HC 1534, 11 October 2018 (web accessible) to the Statement of changes to the Immigration Rules published on 11 October 2018, provides as follows, among other matters:

“Changes supporting the operation of the new application process in UK Visas and Immigration (other than for applications under the EU Settlement Scheme)

Application process

7.8 Changes to the Immigration Rules are required in order to permit UKVI’s transformed application process. The ambition is that most applicants will apply online, with assisted digital support where necessary. A process will also remain for receiving applications on paper for routes where there is no online application form. The Rules changes set out the requirements for making a valid application under the new application process in relation to the applicant making an appointment to attend in person to enrol their biometrics and submitting the required documents in support of their application.

Fee waiver

7.9 The changes will also protect the position of applicants seeking a fee waiver as part of an online application for leave to remain.

7.10 Where an application for leave to remain is made online, an applicant who wishes to apply for a fee waiver as part of that application will have to submit that fee waiver request before the application for leave, and this will be considered first. The applicant will be notified of a decision on the request for a fee waiver, and will have 10 working days from the date they receive this notification to submit an application for leave. If the application is made in time, i.e. within 10 working days, the date of application will be the date the fee waiver request was submitted. This is important because it protects an applicant’s continuing leave whilst they make their application for further leave. If the fee waiver request is granted, the applicant will be able to submit an application for leave without an accompanying application fee. If the fee waiver request is refused, the applicant may still submit an application accompanied by the relevant fee.

7.11 If an applicant does not submit an application for leave within 10 working days, their application will normally be rejected.

Evidential requirements

7.13 The Rules changes are also aimed at helping applicants to meet the evidential requirements in the Rules. To support the new application process as it can be difficult for applicants to obtain original documents, especially if they need to be obtained from overseas, the requirement to provide original documents is being removed and copies can be provided. If there are doubts about whether a document is genuine, verification rules will apply.

Evidential flexibility

7.14 The changes provide for a more generous approach to evidential flexibility. The policy previously allowed for a caseworker to write once, in very precise circumstances, to request further information where an applicant had failed to provide the evidence required. These changes provide more flexibility to caseworkers regarding whether and when they may write to applicants to ask for any missing documents required, to be provided within a reasonable time frame”.

 

(2) THE CHANGES

The system prior to 2 November 2018( and also continuing on some application routes) required an individual to make an application, send their documents to UKVI, who retained them until the application was completed, and enrol their biometrics separately.

From 2 November 2018, people applying for work or study visas, settlement or citizenship from within the UK will be able to make appointments to use new modernized service centres.

In line with Home Office provisions and policy, the modernized service means that most people applying in the UK will be able to submit their biometric information including photos, fingerprints, and signatures as well as their supporting evidence at a single appointment. It will now be possible, in the majority of cases, to take digital copies of evidence meaning that people will not have to hand over important documents, such as passports, while their applications are processed.

The majority of people will now complete their applications online before attending one of the UK Visa and Citizenship Application Services centres (UKVCAS), which will be delivered by commercial partner Sopra Steria.

Customers will be led through an online application process making it clear what they need to do, what supporting evidence they will need and where they need to go to complete their application.

Free appointments will be available for everyone, however, applicants will also have the option to purchase added value services such as same day appointments and On Demand services.

In addition, there will also be 7 dedicated Service and Support Centres (SSC), which are intended to transform the experience for people who need more support with their applications.

It is intended that experienced frontline Home Office staff will help those who need extra support to better understand their circumstances and if necessary, take the appropriate safeguarding action.

These SSCs will be in Belfast, Cardiff, Croydon, Glasgow, Liverpool, Sheffield and Solihull, and will open in January 2019.

 

(3) THE NEW APPLICATION PROCESS

Choice between the new UK Visa and Citizenship Application Service (UKVCAS) and existing postal service:

If an application is made on or after 2 November 2018, an applicant may be given a choice between using a new service for enrolling their biometrics and submitting evidence or using the existing service offered through the Post Office or at a Premium Service Centre (PSC) (subject to availability).

 

Applicable routes where there will be a choice:

Customers seeking leave to remain in the UK or to settle permanently on the following routes will have a choice between using the existing service or the new UK Visa and Citizenship Application Service (UKVCAS):

  • Tier 1 (Investor)
  • Tier 1 (Exceptional Talent)
  • Tier 1 (Entrepreneur)
  • Tier 1 (Graduate Entrepreneur)
  • Tier 2 (General)
  • Tier 2 (Intra-Company Transfer): graduate trainee
  • Tier 2 (Intra-Company Transfer): long term staff
  • Tier 2 (Minister of Religion)
  • Tier 2 (Sportsperson)
  • Tier 4 (General) student
  • Tier 4 (Child) student
  • Tier 5 (Temporary Worker)
  • PBS dependent: partner
  • PBS dependent: child
  • Member of HM forces or their dependents
  • Turkish businessperson or worker
  • Dependent partner of a Turkish businessperson or worker (ECAA 3: dependent partner)
  • Dependent child of a Turkish businessperson or worker (ECAA 3: dependent child)
  • Settle or extend your leave in the UK: Turkish ECAA categories only
  • Settle in the UK: long residence
  • Settle in the UK: child
  • Settle in the UK: partner of a person or parent of a child already settled in the UK
  • Settle in the UK: HM forces category
  • Settle in the UK: refugee or humanitarian protection
  • Settle in the UK: certain categories
  • British citizenship by naturalisation
  • Register for British citizenship as a child under 18
  • Register as a British citizen
  • Update, replace or transfer: biometric residence permit
  • Other leave to remain applications within the Rules (unless noted below)
  • Apply for a Home Office travel document

Applicants applying under the family or private life route, depending on their individual circumstances, may be able to use the new service. During their application they will be advised about which services they are able to use.

 

Applicants who cannot use the new service:

During the transition period applicants can choose to use the existing service and enrol their biometric information at the Post Office or a Premium Service Centre if they are applying for one of these routes. Applicants will be told how to do this as part of their application and in their biometrics enrolment letter.

If applicants are applying through one of the below routes, they will not be able to use the new service and will continue to use the existing service:

    • to join family members in the UK as a dependent, other than a PBS dependent, armed forces dependent or ECAA dependent
    • for family reunion with a refugee or person with humanitarian protection
    • on the basis of statelessness
    • on the basis as a victim of domestic violence under the specific route
    • making further submissions after a failed protection claim
    • to only enrol their biometric information
    • for a fee waiver or fee exemption
    • apply for a certificate of right of abode
    • apply for a registration certificate as an EEA or Swiss national
    • apply for a document certifying permanent residence as an EEA or Swiss national

 

 

Gradual withdrawal of majority of paper application forms:

Over the next few months, the majority of paper application forms will be withdrawn and most UK-based customers applying for leave to remain in the UK or to settle permanently will need to apply online. Check the GOV.UK guidance to see how to make an application.

On the new service, customers will be led through an online application process making it clear what they need to do, what supporting evidence they will need and where they will need to go to complete their application.

 

Between 29 November 2018 until January 2019 – Online applications for leave based on family life or private life including spouse and partner applications:

UKVI’s PSCs closed on 29 November 2018.

If applicants are applying online for leave based on family life, including spouses and partners of settled persons, or private life, they will have the choice to use one of the following services from 29 November 2018 until January 2019:

  • UKVCAS service – applicants will be offered an appointment within 5 days and can choose to have a standard or super priority decision
  • the existing service to enrol their biometric information at the Post Office
  • UKVI’s 24 hour decision service

In the meantime as per the UKVI update of 30 November 2018, there are only a limited number of appointments available at PSCs. These appointments are intended for customers unable to access UKVCAS services during the transition period who may still require a 24 hour decision service. Applicants will be advised about appointment times and PSC locations available to them as part of the application process.

Applicants will be able to return and view the other services available to them before making their final confirmation.

 

New service – applications, payment of fees and health surcharge to be made on-line:

Under the new service, applicants will make their application and pay their application fee online, this will also include their biometric enrolment fee (if applicable). Applicants will also have to pay the immigration health surcharge (if applicable) online before they make their application and include their reference number on the online application.

The applicant will then be directed to Sopra Steria’s website to book an appointment at a UKVCAS centre. At this stage, the applicant can choose whether to purchase added-value services. These services will only be available to applicants using the UKVCAS service.

 

Need to make an appointment as specified by the application process:

Following submission of an application either online or by post the applicant will need to make an appointment as specified by the application process.

An applicant will be able to choose an appointment within 5 working days of making their application. Applicants are encouraged to go to an appointment as soon as possible and will receive a reminder after 15 working days if they have not attended an appointment.

If the application includes family members, the applicant will all need to attend an appointment at a UKVCAS centre at the same time.

Children under 16 must be accompanied to their appointment by the responsible adult named on the application.

If an applicant chooses to use the new service, they will not need to post their supporting evidence to UK Visas and Immigration (UKVI).

They will either self-upload their evidence or take it with them to their appointment.

If an applicant chooses to up-load their evidence, this may reduce the length of their appointment. Applicants will be informed what evidence to submit when they make their application.

In most cases, the applicant will have their supporting evidence (including their passport) returned to them immediately once the appointment is finished. They may not be able to use their passport for travel until they have received a decision on their application.

The applicant will be told what they need to bring to their appointment when they submit their application, this will include:

  • appointment confirmation
  • passport or travel document
  • supporting evidence (unless the applicant chooses to self-upload)

At the appointment the applicant will:

  • show their appointment confirmation ( they will get this as an email containing a QR code) and ID documents to confirm their appointment
  • enrol their biometric information (fingerprints, photograph) and digital signature
  • submit their supporting evidence (unless they choose to self-upload this)
  • show their passport or travel document and have their identity checked
  • speak to a member of staff who will check that their biometric information has been successfully enrolled and their       passport and supporting evidence has scanned correctly

 

Service Standards:- For both the new and existing services, applicants will be told on their application form how long it should take to get a decision. Applicants will also be told if they can get a faster decision on their application.

Applicants will be contacted by UKVI if their application is going to take longer.

If applicants choose to use the UKVCAS service, they will be able to apply to use the priority service online. They will find out how to do this when they have completed their application.

If applicants choose to use the existing Post Office service, they will have to request to use the service and get a reference number before making their application online. See the guidance for the Tier 2 priority service or Tier 4 priority service to find out how to use these services.

 

New service- UKVCAS centres:

From 9 November 2018, new UKVCAS centres began to open with all being opened by early December 2018. These centres will be managed by the Home Office’s commercial partner, Sopra Steria. Applicants can check when service centres will be opening near you.

There will be 57 UKVCAS centres across the UK:

  • 6 core service centres offering free appointments
  • 50 enhanced service centres offering charged appointments
  • 1 premium lounge

Optional added-value services will also be available.

Applicants can use the Assisted Digital Service to get help using the online form if they do not feel confident using a computer or do not have access to one.

The application form and appointment letter will tell applicants how to give their biometrics and how to provide their supporting evidence.

 

The future- Opening of Service and Support Centres in January 2019:

In January 2019, UKVI will start opening dedicated Service and Support Centres (SSCs). Applicants must apply using the existing service until then if they are applying for these routes.

These service centres will be for:

  • some customers applying under family route
  • customers applying to join as a dependant
  • customers applying for family reunion
  • customers applying on the basis of statelessness
  • customers who qualify for a fee waiver or fee exemption
  • customers applying under the domestic violence route
  • some customers who are required to only enrol their biometric information

Further information on SSCs will be made available later this year.

 

(4) SOPRA STERIA- UKVCAS

Under the new process, applicants can now complete their applications online before attending one of the UK Visa and Citizenship Application Services centres (UKVCAS), which will be delivered by commercial partner Sopra Steria.

Via the Sopra Steria website, https://www.ukvcas.co.uk/help-support/ourinfo/bookAppointment, applicants can book an appointment to enrol their biometric information and have their supporting documents checked. They can also buy extra services to make their appointment “ as easy as possible”.

 

Booking an appointment:

To complete an application, applicants must enrol their biometrics and have their supporting documentation checked at one of Sopra Steria service points.

When applicants have filled in their online application with UK Visas and Immigration they will be directed to Sopra Steria’s website where they must set up an account and log in.

Applicants can then book an appointment to visit one of Sopra Steria’s service points.

Applicants must:

  • choose a location
  • choose a date and time

Applicant can book an appointment for:

  • themselves
  • a group of people where applicants all hold a Lead Applicant/ Dependent relationship

Applicants must arrive at the service point in good time for their appointment.

Locations:

Sopra Steria have different types of service points:

  • core service points offer free of charge appointments and out of hours appointments
  • enhanced service points offer an inclusive package of extra services
  • premium lounge that offers a personalised customer experience

Date and time:

If applicants want to visit one of these service points they can book an appointment:

  • up to 28 days in advance
  • the same day
  • the next day
  • outside of standard office hours

 

Preparing documents:

Applicant’s supporting documents must be uploaded either before or during their appointment. Applicants can do this:

  • themselves on the Sopra Steria website (recommended)
  • by choosing Sopra Steria document scanning service and they will do it for applicants during their appointment (charges may apply for using this service)
  • It is to be noted that if an applicant’s appointment is at an enhanced service point or premium lounge, or an on-demand pop-up or VIP visit Sopra Steria will upload the documents for applicants during their appointment as part of the service.

When applicants attend their appointments they must bring with them the following:

  • the appointment confirmation details they received in the confirmation email from Sopra Steria (that is, the document containing the QR barcode in attachment for each group member)
  • all the applicant’s supporting documents

 

Visiting the Service Points:

Applicants must arrive at the service point in good time for their appointment.

When applicants arrive at a service point, Sopra Steria will check applicant’s appointment confirmation details. Applicants can then enrol their biometric information, either by:

  • doing it themselves at a self-service kiosk
  • having one of the team do it with applicants at a counter
  • Biometric enrolment is a:
  • scan of the applicant’s passport
  • photograph of applicant’s face
  • scan of applicant’s fingerprints
  • digital signature

Sopra Steria will then check that everything has gone well, including:

  • the biometric enrolment
  • document checking
  • paymentsIf applicants want to provide additional documents to support their application they can upload them, provided they do so before 22.00 on the same day.Sopra Steria offer extra services to applicants to prepare for their appointment.
  • Extra Services – Appointments:
  • If applicants have used the document scanning service then their original documents will be returned to them. They will not have been out of applicant’s sight. If applicants are happy to proceed, Sopra Steria will then submit their application.

In addition to the free of charge appointments at core service points Sopra Steria have a range of other appointment types.

Enhanced service points: Sopra Steria have enhanced service points across the UK. An appointment at one of their enhanced service points also includes the evidence scanning and evidence checking services. Prices start from £60 per person.

Out of hours appointments: If an applicant’s day tends to be busy, they can book an out of hours appointment at both core and enhanced service points and they can also book any other extra service when they do so. Out of hours appointments are offered subject to availability and start from £100 per person on top of any other appointment-based fees.

Next day appointments – If applicants need to attend an appointment quickly, they can book a next day appointment at one of the service points. The applicant will also be able to book any other appropriate extra service when they do so. Next day appointments are offered subject to availability and start from £100 per person on top of any other appointment-based fees.

Same day appointments – If the application is urgent, applicants can book a same day appointment at one of the service points, as well as any other extra services, subject to availability. Same day appointments are offered subject to availability and start from £100 per person on top of any other appointment-based fees.

 

Premium Lounge:

The premium lounge is stated to be “for customers who desire a service with added comfort and privacy”.

The first premium lounge, located in the heart of the City of London, is situated across the road from Fenchurch Street Overground Station and within 7 minutes’ walk of both Monument, Bank and Tower Hill tube stations.

The premium lounge provides an upgraded service in comfortable surroundings with spacious seating areas, hi-speed wifi and business facilities such as scanning and printing. Free daily newspapers and hot and cold beverages will be available as well as a choice of freshly prepared pastries, light snacks and fruit. The application process will be completed in an individual application suite where biometric collection and document scanning can take place in an environment of seclusion and privacy.

Appointments at the premium lounge are available Monday to Friday from 08:00 to 18:00 for standard appointments with evening appointments available to 20:00 on Wednesdays and Thursdays.

Applicants can choose the premium lounge when they book their appointment. The price for a standard appointment is £200. The price for an out of hours appointment is £260.

 

Extra Services- On demand pop up service:

The on-demand pop-up service is a service point that comes to a location convenient to the applicant. This service provides application facilities for organisations with more than 10 applicants and is available in England, Scotland, Wales and Northern Ireland.

Sopra Steria teams can arrange half day or full day sessions depending on the number of applicants and can even remain in the area for several days to process higher volumes if necessary. The benefits for employees and students are considered to be convenience and time saving, while organisations benefit from reduced leave days and lost study time for applications that would otherwise be completed away from the office or campus.

To use this service, applicants can send Sopra Steria a message through the General Enquiry link to request more information. Once a corporate account is created an applicant will be able to request a preferred day and time for an on-demand pop-up to visit their organisation. Sopra Steria Customer Service Team will be the single point of contact for arranging the visit, taking payment and discussing anything they should be aware of ahead of the visit.

The price for this service varies depending upon the customer’s requirements.

 

Extra Services – The VIP Service:

The VIP Service is a mobile service provided by specially trained team members who will visit an applicant in their home, office or other location. The team will complete the same processes provided in their physical offices – such as identity checks, biometric enrolment and document scanning (if required) – but in a location that is convenient to the customer. The VIP service is stated to provide “convenience, privacy and peace of mind for you and your family”.

The VIP service is available in England, Scotland, Wales and Northern Ireland and offer availability 24 hours a day, 365 days a year. To select this service, applicants must enter the details requested, including the postcode of the location they wish the team to visit.

Applicants must also enter the preferred date and time of day for the visit. Morning appointments are available up to 12.00 midday, afternoon appointments are available up to 18:00 and evening appointment are after that. Sopra Steria will aim to provide an appointment as close to the applicant’s preferred date and time as possible, and their customer service team will contact the customer to agree the finer details of the visit.

Sopra Steria will also ask the applicant to share some information that the team should be aware of ahead of the appointment, such as access to shared entrances, parking and confirmation of the number of applicants, and whether there will be a suitable private area to take photographs.

As to price, customers are required to request a call back via the UKVCAS website to obtain a quote.

 

Extra Services – Immigration Advice and document legalisation service:

The Sopra Service website states that their named immigration consultants are accredited by the UK’s Office of the Immigration Services Commissioner (OISC) and can assist applicants with a full suite of UK immigration services, including extension of student and work visas, applications for indefinite leave to remain and citizenship.

The site states that their immigration consultants do not make immigration decisions and can only give you advice.

The site also provides that if applicants require certified copies of documents issued in the UK, they can get them certified by a solicitor. This can be done by sending the original documents to Sopra Steria’s central hub. The hub will arrange for certified copies to be prepared and returned to the applicant by courier or Royal Mail Signed For.

In case applicants need to legalise documents that were issued outside the UK, applicants must present the original documents authenticated by the relevant government authorities in the country of issuance. Sopra Steria will then arrange to have these documents legalised at the local embassy or consulate of that country, in the UK. If the original documents have not been authenticated in the country of origin, Sopra Steria state on their website that they can arrange for such authentication through carefully selected reputable and reliable service providers in the countries of origin.

The price for this service is stated to vary depending upon an applicant’s requirements.

 

Extra Services- Document Translation:

The document translation service can be used by customers whose original documents are not in English or Welsh. All translations are completed by professional translators who will translate the documents within 3 to 4 days.

All types of documents can be translated to support the applicant’s application including marriage, birth and divorce certificates as well as driving licences, academic diplomas and sponsor letters. The translations can be completed from scanned documents which are sent securely to Sopra Steria’s central hub for completion.

The applicant’s translated documents will be returned by email and by post.

The price for the document translation service is £75 per page.

 

Extra Services- Interpretation:

If English is not the applicant’s native language, Sopra Steria can arrange for an interpreter to be available for the applicant over the telephone if they require language assistance during their appointment.

Interpretation services are only available at core service points and the premium lounge.

Applicants can choose the interpretation service when they book their appointment. The price for this service is £60 in total.

 

Extra Services- Document Checking Service:

Applicants can buy the document checking service if they want Sopra Steria team to check that they have correctly uploaded the documents for their appointment, that the scanned documents they provided are of an acceptable quality and are complete.

To use this service applicants must upload their documents through the website at least 2 working days before their appointment date.

If applicants have booked an appointment at one of the enhanced service points the document checking service is included in the price of that appointment.

Applicants can choose the document checking service when they book their appointment. The price for this service is £35 in total, per person.

 

Support Line

Applicants can call Sopra Steria support line to make a new purchase or for certain visa application enquiries on the following numbers: 0900 165 6600 (inside the UK) or +44 900 165 6600 (outside the UK). Calls cost £2.50 plus the standard network rate and access charge.

Lines are open 8am to 8pm Monday to Friday, and 9am to 5:30pm on Saturdays. If an applicant has enquiries with respect to purchases they have already made they can use the enquiry form or call the non-premium rate number provided in the booking confirmation email.

 

(3) SOME REFERENCE POINTS – VALIDITY OF APPLICATIONS AND THR NEW PROCESS

 

 

(4) COMMENT

Sopra Steria through their website,  have been carefully presented as the hub from which all services that applicants could possibly require can be obtained. A click on their website is all that is needed to gently nudge applicants to utilise other services provided by or via this organisation, such services including assistance with preparation of applications, as well as enabling translation and legalisation/authentication services. It is without doubt that these other services will prove useful to some applicants, however Sopra Steria are the designated UKVI commercial partner, there is no other choice but to be led to their site: as such once an applicant finds themselves directed to Sopra Steria’s website they are met with quite a few  other marketing services which appear to have nothing to do with the main reason why were directed there in the first place, i.e automated direction to Sopra Steria’s website to book an appointment at a UKVCAS centre.

A comparison of the new process with the unencumbered application process prior to 2 November 2018 calls into question why it was considered necessary to introduce the new application system with all its accompanying unnecessary frills. Introducing an on-line application system is itself unobjectionable; after all immigration practitioners and applicants have been utilising the on-line application process for several years now in entry clearance applications via the visa4uk website, https://www.visa4uk.fco.gov.uk/home/welcome. The concern is with the majority of the extra services embedded within the new system which will likely not be required by most applicants, e.g the majority of applicants on the 5year or 10year route to settlement and other routes have been having their  applications considered without them over the years. What then is the point of adding on some of these extra services? They are certainly not free.

What applicants above all want to know is the law as applicable to their case, the options and solutions to their legal problem and thereafter how best they can be enabled to present their application package as tailored to their individual circumstances. Actual submission of that application comes right towards the end of these considerations.

Introduction of the new application process may enable applications to be considered much more quickly. However will the new process do away with poor decision-making on the part of Home Office Case  decision makers? Will there be an effective process whereby upon lodgement of an appeal or submission of an effectively prepared Appellant’s bundle, withdrawal of a clearly erroneous decision will be made  prior to the date of the appeal hearing?

What is the point of an applicant paying exorbitant Home Office application fees, adding on some extra services simply for the comfort of a few hours of a pampered service, only to be met with a potentially unlawful refusal decision a short while later?

It’s a new application process and it remains to be seen how it will all actually work in practice, however a glaring question that remains is this: why have two different system application processes existing side by side even for the same type of application route? Why not streamline the process entirely and introduce it as becoming wholly effective on a certain specified date?

Having both an on-line process as well as a paper application form for the same route will create confusion in some cases and may in the coming weeks lead to more invalidation and rejection of applications. For example, currently there is both an on-line and paper application form for FLR(M) applications. If an applicant completes the paper form and posts it to the Home Office unaccompanied by a fee waiver application then that is the wrong procedure. Such an applicant, not requesting a fee waiver must now apply online.

There appears as yet to be no proper guidance on the new application process. The fee waiver policy guidance Fee waiver: Human Rights-based and other specified applications updated on 8 January 2018 remains unamended. This may be because currently, no fee waiver applications can be made on line.   It appears that much work still remains to be undertaken by the Home Office in relation to the new application process however it is hoped that the current state of affairs will not be grasped by the Home Office to reject and invalidate submitted applications without an opportunity to rectify errors or omissions on the part of applicants.

 

 

 

 

 

 

 

Part 1: How not to fall foul of the new application process and ensure a valid Home Office application

A new Home Office application process is now in operation, although confusingly and inexplicably, it currently also co-exists side by side with the “old” system that was in place prior to 2 November 2018.

Although confusion might initially arise in the next few weeks in relation to the operation of new process, it is very important that as the  process gradually comes into flow, that applicants keep a close and continual eye on UKVI announcements and updates, introduction of relevant new or amended Home Office Policy guidance and most importantly, pay close attention to the contents of the very first page of published paper application forms and accompanying Guidance as regards the circumstances in which paper application forms can continue to be used in the interim.

The operation of the new process will inevitably affect the validity and acceptance of applications.

Part 2 of this post will set out the new Home Office application process and some commentary, whilst for now the Rules and updated Guidance are considered in conjunction of each other as set out below.

 

(1)UPDATED HOME OFFICE GUIDANCE- VALIDITY OF APPLICATIONS

On 30 November 2018, the Home Office published new guidance, Applications for leave to remain: validation, variation and withdrawal, intended to reflect changes which, “ have been made to the guidance to reflect amendments to the rules in October 2018 on the requirements for a valid application and to support the operation of the new application process introducing the UK Visas Citizenship Application Service (UKVCAS) and Support Centres (SSC) in UK Visas and Immigration (UKVI)”.

 

(2)EFFECT OF INVALID APPLICATIONS

An application for leave to remain in the UK is valid when the requirements of Paragraph 34 of the Immigration Rules are met, or where one of the exceptions set out in Paragraph 34 apply.

Paragraph 34A of the Immigration Rules provides:

“34A. Subject to paragraph 34B, where an application for leave to remain does not meet the requirements of paragraph 34, it is invalid and will not be considered”.

 

(3) NOTIFICATION OF ONE OPPORTUNITY TO CORRECT ERRORS OR OMMISSIONS

Paragraph 34B of the Rules provides:

“34B. (1) Where an application for leave to remain does not meet the requirements of paragraph 34(1)-(9), the Secretary of State may notify the applicant and give them one opportunity to correct the error(s) or omission(s) identified by the Secretary of State within the timescale specified in the notification”.

 

(4)HOW TO ENSURE YOUR APPLICATION IS VALID

 

Application must be made on a specified application form:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

(1) (a) Subject to paragraph 34(1)(c), the application must be made on an application form which is specified for the immigration category under which the applicant is applying on the date on which the application is made.

(b) An application form is specified when it is posted on the visa and immigration pages of the GOV.UK website.

(c) An application can be made on a previous version of a specified paper application form (and shall be treated as made on a specified form) as long as it is no more than 21 days out of date”.

Paragraph 34(1) of the rules sets out that the application must be made on a specified application form. There is a specified form for all types of application for leave to remain.

An application form is specified when it is posted on the visa and immigration pages of the GOV.UK website. It may be an online or a paper form. Some application routes have both paper and online forms, some only online and some only paper.

The application form must be specified for the immigration route under which the applicant is applying.

If an applicant has not applied on the correct specified form, Home Office Caseworkers must write to them telling them, or if they are at the SSC inform them in person, to use the correct form (indicating what the correct form is) and give them 10 working days to submit an application on that form. If they do not do this, the Home office should normally reject the application as invalid.

If the applicant does respond to the request and complete the correct form, the date of application is the date the earlier incorrect form was submitted.

Paragraph 34Y states:

“34Y. Where an application is made no more than 21 days after the date on which a form is specified (within the meaning of paragraph 34) and on a form that was specified immediately prior to the date of the new specification, the application is deemed to have been made on the specified form (and is therefore not to be treated as invalid by reason only of being made on the “wrong” form)”.

When applying on a paper form, an applicant must normally use a current version of the paper specified application form. However, where the applicant submits an application on a previous version of an application form, this will be treated as made on a specified form so long as, at the date the application is made, the version of the paper form they use:

  • is no more than 21 days out of date
  • was previously specified for the immigration route under which the applicant is applying

Paper forms are marked with the version number and the date they are valid from.

An application made on a previous version of a specified application form must still meet the other requirements of paragraph 34 of the rules. This includes paying the correct fee specified by the fee regulations on the date of application, not the fee stated on the previous version of the form which may be different.

 

All mandatory sections of the application form must be completed:

Rule 34 states:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

…………

(2) All mandatory sections of the application form must be completed”.

Paragraph 34 of the Rules sets out that all mandatory sections of the application form must be completed. This is only relevant to paper forms as it is not possible to complete an online form without completing the mandatory sections.

If an applicant has not completed the mandatory sections of a paper form correctly, Home Office Caseworkers may write to them using a validation warning template and give them 10 working days to correct the errors or omissions. If the applicant attends a Service and Support Centre, the Caseworker must tell them in person and ask them to either complete the mandatory sections then or return the completed application form by post within 10 working days.

If the applicant does not respond correcting all the errors or omissions within 10 working days, the Caseworker may reject the application as invalid.

The Caseworker can however use discretion and accept the application as valid if a mandatory section of the form is not completed but the applicant provides the required information elsewhere in the application.

 

Requirement to provide full fee payment:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

……………..

(3) Where the applicant is required to pay a fee, this fee must be paid in full in accordance with the process set out in the application form.”

The online and paper applications explain how to pay the application fee. Each applicant must pay any relevant fee for their application in full and according to the process set out on the form. The fee to be paid is the one in place on the date the application is submitted.

If an applicant has not paid the correct fee, Home Office Caseworkers must write to them and give them 10 working days to rectify their mistake. They must provide instructions on how to pay the correct fee. If the applicant does not do this, the Caseworker must reject the application as invalid.

If the applicant attends a Service and Support Centre, the Caseworker must tell them in person that they have not paid the correct fee and ask them to pay the fee then or return the completed application form and correct fee within 10 working days.

If the correct fee is paid within 10 days the date of application is the date the original application was made.

Home Office Caseworkers do not have discretion to treat an application as valid where the applicant has not paid the correct fee even when the other requirements of Paragraph 34 have been met. Therefore, it is important that Caseworkers give them the opportunity to pay the correct fee.

Retention of an administration fee:- Fees regulations provide for the Home Office to retain an administration fee when rejecting an application as invalid. It applies to all charged in country applications for leave to remain.

Where the fee has been paid but the application is invalid, the Caseworker must reject the application and process a refund for the application minus £25 per person included in the application form.

If an incorrect fee has been paid and the application is rejected as invalid, an administration fee must be retained against the incorrect fee.

An administration fee cannot be retained if an application is void, withdrawn before enrolment of biometrics (where the Home Office refund the fee paid) or the applicant has died.

Paper applications and fee waiver requests:-Some applicants can apply for a fee waiver or qualify for a fee exemption. The most common is the fee waiver for particular human rights based applications. For guidance on fee waivers for these applications see: Fee waiver: Human Rights-based and other specified applications

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘in time’ (before their current leave has expired), and the request for a fee waiver is refused, the Caseworker must write to them by using the validation warning template and give them 10 working days to pay the application fee. If they do not pay the fee within that deadline, the Caseworker must reject the application as invalid. If the fee is paid within 10 working days the application date is the date the paper form was submitted.

If an applicant has made a paper application for leave to remain and also requested a fee waiver, if the application is made ‘out of time’ (where the applicant does not have current leave) and the request for a fee waiver is refused, the Caseworker must inform them that the request for a fee waiver has been refused and their application for leave to remain is therefore invalid and has been rejected.

On-line applications and fee waiver requests:- It is not currently possible to request a fee waiver online.

 

Requirement to pay the Immigration Health Charge payment:

Rule 34 states:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

(4) Where the applicant is required to pay the Immigration Health Surcharge, this must be paid in accordance with the process set out on the visa and immigration pages of the GOV.UK website”.

The Immigration Health Charge (IHC), or the ‘immigration health surcharge’ (IHS), was introduced on 6 April 2015. All applications submitted on or after this date, including applications to vary those made before 6 April 2015, must include payment of the IHS unless the applicant is exempt.

If an applicant applies for entry clearance which will take effect as limited leave for more than 6 months, or leave to remain they are required to pay the IHS as part of their application (unless exempt). They must do so in accordance with the process set out in Pay for UK healthcare as part of your immigration application: https://www.gov.uk/healthcare-immigration-application/pay

The IHS is refunded if an application for leave to enter or remain is:

  • refused
  • rejected
  • withdrawn
  • void

Those applicants who qualify for a fee waiver are also exempt from paying the HIS.

If an applicant (including a dependant applicant) has not paid the correct IHS, the Caseworker may write to them and give them 10 working days to pay correctly. If they do not respond, the Caseworker should normally reject the application as invalid.

 

Requirement to provide proof of identity:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

……………

(5) (a) Subject to paragraph 34(5)(c), the applicant must provide proof of identity as described in 34(5)(b) below and in accordance with the process set out in the application form.

(b) Proof of identity for the purpose of this paragraph means:

(i) a valid passport or, if an applicant (except a PBS applicant) does not have a valid passport, a valid national identity card; or

(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card; or

(iii) if the applicant does not have any of the above, a valid travel document.

(c) Proof of identity need not be provided where:

(i) the applicant’s passport, national identity card or travel document is held by the Home Office at the date of application; or

(ii) the applicant’s passport, nationality identity card or travel document has been permanently lost or stolen and there is no functioning national government to issue a replacement; or

(iii) the applicant’s passport, nationality identity card or travel document has been retained by an employer or other person in circumstances which have led to the applicant being the subject of a positive conclusive grounds decision made by a competent authority under the National Referral Mechanism; or

(iv) the application is for limited leave to enable access to public funds pending an application under paragraph 289A of, or under Part 6 of Appendix Armed Forces or section DVILR of Appendix FM to these Rules; or

(v) the application is made under Part 14 of these Rules for leave as a stateless person or as the family member of a stateless person; or

(vi) the application was made by a person in the UK with refugee leave or humanitarian protection; or

(vii) the applicant provides a good reason beyond their control why they cannot provide proof of their identity.

(6) Where any of paragraph 34(5)(c)(ii)-(vii) applies, the Secretary of State may ask the applicant to provide alternative satisfactory evidence of their identity and nationality”.

Paragraph 34 sets out that an applicant must provide, in order of preference:

  • a valid passport
  • a valid national identity card – this option is not available for PBS applicants
  • their most recent passport – this is the last one they held if no longer valid
  • their most recent national identity card – this is the last one they held if no longer valid
  • a valid travel document – this means a document, other than a passport or nationality identity card, which has been issued by the government of the UK or another state and which enables travel from one country to another

A passport, national identity card or travel document will not be valid if it:

  • has been cancelled
  • has expired
  • was not issued by the government or authority by which it purports to have been issued
  • has been altered in some way

The exceptions to the requirement to provide proof of identity are set out in paragraph 34 of the rule.

If the Home Office has the applicant’s proof of identity on the date of application, then the applicant cannot provide it and the Caseworker must not reject their application as invalid on this basis.

Paragraph 34(5)(c) of the Rules sets out that an applicant can provide a good reason beyond their control why they cannot provide any proof of identity.

Paragraph 34(6) of the Rules states that the Caseworker may ask the applicant to provide alternative satisfactory evidence of their identity and nationality. For example, this could be a combination of:

  • birth certificate
  • driving licence
  • national health card
  • national service document

If an applicant has not provided proof of identity, and no exception applies, the Caseworker may write to them by using the validation warning template and give them 10 working days to provide proof of identity. If they do not do so, the Caseworker should normally reject the application as invalid.

Requests for the return of the applicant’s passport to travel outside the common travel area (CTA):- If a person requests the return of their passport to travel outside the common travel area (CTA) before a decision is made on their application for leave to remain, the Caseworker must treat the application as withdrawn on the date that request is received by the Home Office unless an exception applies. This is set out in paragraph 34J of the Immigration Rules.

The CTA includes the:

  • UK • Republic of Ireland
  • Channel Islands
  • Isle of Man

In all cases, Home Office Caseworkers must ask the person to confirm their request for the return of their passport in writing including email. They must treat the application as withdrawn regardless of whether or not the applicant later leaves the CTA. If biometrics have already been submitted the Caseworker must not refund the fee.

If a person whose passport has been returned to them travels outside the CTA the Caseworker must treat their application as withdrawn.

Where the Home Office has retained a person’s passport, the Caseworker must not treat an application as withdrawn if the person requests the return of their passport for purposes other than travel or for travel within the CTA. For example to open a bank account, take the Life in the UK Test or apply for an identity document not related to travelling outside the CTA.

 

Written consent from parents or legal guardian for main applicants who are under 18 years old:

Rule 34 states:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

………………

(7) Where the main applicant is under the age of eighteen, their parent or legal guardian must provide written consent to the application”.

If the applicant is under the age of 18, and not a dependant on an adult’s application, then their parent or guardian must provide their written consent to the application. This is a mandatory requirement set out in paragraph 34(7) of the Rules.

If the parent or guardian of an applicant who is under 18 does not provide this written consent with their application, the Caseworker may write to them by using the validation warning and give them 10 working days to provide it. If they do not do so, the Caseworker should normally reject the application as invalid.

If the applicant attends a Service and Support Centre with their parent or guardian and the Caseworker has proof of the relationship they may ask them to provide written consent to the application at the appointment.

 

Paper application forms must be sent by pre-paid post or courier to the address on the application form:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

………………

(8) Where the application is made on a paper application form, it must be sent by pre-paid post or courier to the address on the application form”.

A posted application must be sent by pre-paid post or by courier. The postal address used must be that indicated on the application form.

 

Compliance with the biometrics enrolment process:

Rule 34 provides:

“34. An application for leave to remain must be made in accordance with sub-paragraphs (1) to (9) below.

………………………

(9) An applicant must comply with the application process set out on the visa and immigration pages on GOV.UK and in the invitation to enrol biometrics which is provided as part of the application process in relation to –

(a) making an appointment to provide biometrics, and

(b) providing any evidence requested by the Secretary of State in support of their application”.

Home Office Caseworkers must not accept an application as valid if the applicant has not provided their biometric information and none of the exceptions apply. The requirement to provide biometrics and the exceptions are included in the Immigration (Biometric Registration) Regulations 2008.

 

Other issues – Date of application, simultaneous applications and variation applications

Date of application – original application: – The date of application for paper applications sent by post by Royal Mail, including Parcel Force, is the date of posting that is indicated on the tracking information, or if not tracked, on the postmark on the envelope.

The date of application for postal applications delivered by courier is the date it is delivered to the Home Office.

The date of application for an online application is the date it is submitted using the online process.

If a Home Office Caseworker withdraws a decision to treat an application as invalid and instead accepts it as valid, the date of application is the date the application was originally made.

If an application, or variation, was previously rejected as invalid and the applicant then submits a valid application, the date of application, or variation, is the date the valid application is submitted.

Simultaneous applications:- An applicant cannot submit simultaneous applications, only one form of leave can be granted at any time. If an applicant attempts to submit more than one paper application on the same day, the Home Office Caseworker must normally explain to them, in writing or in person at a Service and Support Centre, that only one application can be made at a time. The Caseworker must ask them to indicate within 10 working days which application they would like to be considered and which application or applications they would like to withdraw. If they do not clarify within this timescale , the Caseworker must reject all applications as invalid.

If they do respond, the Caseworker must record the response and mark as withdrawn the application they have said they wish to be withdrawn, and, if biometrics are not enrolled, return the fee they have paid for that application. This does not apply if one of the applications is a claim for protection.

Date of application and application to vary:- An applicant can vary the purpose of an application at any time before a decision on the application is made. Any application submitted where a previous application has not yet been decided is a variation of that previous application.

If the applicant wishes to vary the purpose of their application, they must complete the specified form and meet all the requirements of paragraph 34 of the Immigration Rules for the variation to be valid.

If an applicant writes to request a variation of an application but does not submit an application form, Home Office Caseworkers should write back to them confirming that they must complete a specified form and tell them which form to use.

When the original and variation applications are made online, the applicant will have paid 2 fees. The higher fee will be retained and the Caseworker must refund the lower fee. If both applications, or the second application, are on paper, the applicant must pay the difference between the original fee and the new higher fee and the Caseworker should write to them to tell them what the difference is.

An applicant can only have one application outstanding at a time, except for one very specific exception, and where one application is a human rights or protection claim. When an applicant submits an application for leave followed by another application for leave, the second application will either be a variation of the first application, or a new application.

Where an application is varied, the application date remains the date of the original application. This is relevant to whether an applicant has, or will have, section 3C leave.

For PBS applications, where a variation application is made in accordance with paragraph 34E, the date the variation application is made is the date to be used for the purposes of assessment against the Rules.

The very specific exception referred to above applies as follows:

An applicant submits application A in time. They transition to 3C leave and application A is refused, and the decision is served with a right of appeal. The applicant then submits application B, whilst still on 3C leave (for example, before the time limit to appeal has ended).

In this scenario, if application B is a human rights claim or protection claim, application B must be decided. If application B is any other type of application, then it must be returned as void as there is no longer an application to vary.

Applications from outside the UK:- A person can make an application to vary their continuing leave from outside the UK. Paragraph 33A of the Immigration Rules confirms this. Although such an application can be made from abroad, paragraph 33A is clear that the Secretary of State is not obliged to consider such an application. However, if the applicant leaves the UK with extant leave, makes an application to extend that leave from abroad before their leave expires, they transition onto section 3C leave and will have 3C leave indefinitely if the Home Office do not decide the application.

 

Void applications:

An application is void when the Home Office cannot process it. For example an application for:

  • limited leave to remain from a person who already has indefinite leave to remain
  • leave to remain from a person who has their leave extended by 3C pending an appeal, unless the application is a human rights or protection claim – see: 3C guidance 3C and 3D leave and for details on what applications are treated as human rights claims see the Rights of Appeal guidance. Rights of appeal
  • an application for leave to remain from a person who is outside the UK without continuing leave

A dependant’s application where the main applicant withdraws their application or varies their application to a route that does not allow for dependants.

 

 

 

 

 

 

Not yet time for Supreme Court to revisit criteria in Article 3 medical condition cases says Court of Appeal

MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018) as recently decided in the Court of Appeal, is  largely a follow up and conclusion of that Court’s considerations following remittal of MM’s case to the Upper Tribunal as per MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018).

A blog post published following MM(Malawi) No.1 in the Court of appeal, Article 3 medical condition cases: The Paposhvili test returns to plague the Court of Appeal, summaries the applicable two tests currently in tension on Article 3 medical condition cases:

  • the test in article 3 medical cases as expounded in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, i.e. that, where an individual suffers from a serious medical condition, it would breach article 3 to remove him from the UK only where he would face an early and undignified death
  • the test in article 3 medical cases as per the criteria in Paposhvili v Belgium [2017] Imm AR 867,ie the “Paposhvili test”.   The Court in MM(Malawi) No.1 observed earlier this year that the effect of Paposhvili upon existing jurisprudence was considered in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64, at paragraph 38:   “So far as the [European Court of Human Rights] and the [ECHR] are concerned, the protection of article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where ‘substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’ (paragraph 183). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”

In MM(Malawi) No.2, the Court of Appeal summarised as follows in relation to the effect of AM(Zimbabwe):

  • Despite the guidance given in Paposhvili, as a result of the principle of stare decisis, i.e. the usual rules of precedent in this jurisdiction, the test in N remains binding on the Court of Appeal and indeed all tribunals and courts in this jurisdiction, subject only to the Supreme Court using its power to overrule it.
  • Paposhvili at paragraph 183 relaxes the test for violation of article 3 in the case of removal of a foreign national with a medical condition (see [37]). As Sales LJ put it at [38] in AM(Zimbabwe): “… [T]he boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”
  • However, whilst acknowledging that relaxation of the test, Sales LJ considered “it does so only to a very modest extent”. The article 3 threshold in medical cases remains high.
  • In respect of the correct approach and burden of proof, Sales LJ said this (at [16]) in AM(Zimbabwe): “It is common ground that where a foreign national seeks to rely upon article 3 as an answer to an attempt by a state to remove him to another country, the overall legal burden is on him to show that article 3 would be infringed in his case by showing that that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country: see, e.g., [Soering] at [91], which is reflected in the formulations in Paposhvili at [173] and [183]…. In Paposhvili, at [186]-[187]…, the Grand Chamber of the ECtHR has given guidance how he may achieve that, by raising a prima facie case of infringement of article 3 which then casts an evidential burden onto the defending state which is seeking to expel him.”

 

MM(Malawi) No. 2 in the Court of Appeal- Article 3 medical condition case:

MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018)  involved two appeals concerning the protection of article 3 against removal from the United Kingdom in cases where it was said that an absence of, or lack of access to, medical treatment in the receiving state will result in a decline in health of the foreign national it is proposed to return.

Both MM and MV conceded that (i) the test for article 3 medical cases set out in N as explained in AM (Zimbabwe) was binding on the Court of Appeal, and (ii) none of them was able to satisfy that test. However, they submitted that, unlike the individual cases in AM (Zimbabwe), they each satisfied the test in Paposhvili; and the Court of Appeal, whilst bound to refuse their appeals, should give permission to appeal to the Supreme Court to enable that court to reconsider N in the light of Paposhvili.

Upon the Upper Tribunal considering MM’s appeal in October 2018 following remittal from the Court of Appeal, the Upper Tribunal held in essence that the form of ARV treatment required by MM, who was HIV positive, was available, appropriate, affordable and accessible in Malawi.  ARV therapy in Malawi is free in public health facilities and subsidised in private health facilities. The Upper Tribunal therefore concluded that there was no real risk that returning to Malawi would cause a decline in MM’s physical health. Her life expectancy would not be affected . Her mental health condition would be managed as it is in the UK. The result was that the Upper Tribunal concluded that MM’s appeal would fail even under the Paposhvilli test.

Upon reaching the Court of Appeal, that Court observed that it was common ground that the appeal would have no prospect of success before it, because MM could not satisfy the criteria in N which the Court was bound to apply. The only issue for the court was whether there was some other compelling reason to hear the appeal, namely that, although not satisfying the criteria in N, MM satisfied the criteria in Paposhvili; and consequently the Court should grant permission to appeal and refuse the appeal, but grant permission to appeal to the Supreme Court or, at least, give MM an opportunity and perhaps even encouragement to seek such permission from that court.

In response to the several arguments put forward on behalf of MM, some described by the Court as “ courageous submissions”, the Court of Appeal concluded as follows in summary:

  • The questions posed on MM’s behalf had been answered and sufficient guidance given in AM (Zimbabwe) which, although MM’s Counsel did not concede that it was correct, accepted was binding on the Court of Appeal. The Court made it clear that , “unless and until the Supreme Court holds otherwise, the domestic courts are bound to follow N as explained in AM (Zimbabwe). If a particular therapy is unavailable in the receiving state, then that may be sufficient to satisfy the criteria in N and/or Paposhvili; but that will always be a fact-specific question”.
  • The Court did not consider that there were any ground upon which the factual findings of the Tribunal were arguably challengeable. In those circumstances, its conclusion that there was no real risk that returning to Malawi would cause a decline in MM’s health or any reduction in her life expectancy – and thus no real prospect of satisfying the Paposhvili criteria – was unimpeachable. The Court of Appeal refused permission to appeal.

 

MV (Sri Lanka)- Article 3 suicide risk case:

At paragraph 22 of their judgment, the Court noted as regards MM No. 2, that the Upper Tribunal, “heard the matter on 8 October 2018; and I am grateful for their prompt determination promulgated on 12 October 2018, which enabled the application in this court to be heard with the appeal in MV (Sri Lanka) which raises similar issues”.

In support of his claims, MV relied upon a report of a consultant psychiatrist. On the basis of MV’s reportage, he diagnosed him as suffering from PTSD and severe secondary depression. At that stage, MV was being treated by his doctor with low dose antidepressants. He had not been referred to a psychiatrist. The psychiatrist considered MV should be prescribed different antidepressant drug therapy, and also referred for guided psychotherapy. If he were returned to Sri Lanka, it was said that drug therapy would be available, but psychotherapy would not. It was considered that MV was not currently at suicide risk, because his aunt managed his medication and he lacked all motivation; but the risk would definitely be increased if he did not have such support.

Applying the guidance and criteria in in J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 and Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362; [2009] HRLR 22, the First Tier Tribunal Judge, dismissing the appeal held that the risk of suicide would not place the UK in breach of article 3 if it was to return MV to Sri Lanka. Among other reasons it was found that antidepressant medication would be available in Sri Lanka, there was no evidence that MV had received psychotherapy in the UK and that MV would not be alone on arrival in Sri Lanka, but rather his family would be there for him.

The Upper Tribunal endorsed the First Tier Tribunal’s decision holding that case was not so severe as to amount to a breach of article 3 on the basis of a risk of suicide.

Permission to appeal to the Court of Appeal was given on the ground that the First Tier Tribunal and Upper Tribunal had erred in applying the criteria in N rather than those in Paposhvili . It was stated that it was possible that the evidence did not meet that reduced threshold; but it was considered that that was a matter which should be considered by the full court. The grant of permission also stated that: “It seems to me that it is seriously arguable that applying the less severe test to article 3 might on the evidence available have caused the FtT and the UT to reach a different result.”

The Court of Appeal considered and concluded as below in MV:

  • It was accepted by Counsel for MV, that N as explained in AM (Zimbabwe) was binding on the Court of Appeal , and MV could not satisfy its criteria. The appeal therefore fell to be dismissed. The real issue was whether, because MV satisfies the criteria in Paposhvili, his case might be an appropriate vehicle for the Supreme Court to revisit the criteria in article 3 medical cases.
  • It was further noted that it was submitted on the Appellants’ behalf that Sales LJ in AM (Zimbabwe) had misconstrued paragraph 183 of Paposhvili, by reading it as requiring any “significant reduction in life expectancy” to be linked to exposure “to a serious, rapid and irreversible decline in [the applicant’s] state of health…”.  Properly read, if there was a risk of a significant reduction in life expectancy as a result of removal, it was submitted that that satisfied the criteria in that paragraph. Although Counsel for the Appellant accepted that AM (Zimbabwe) was binding on the court, he submitted MV ought to be allowed an opportunity to argue before the Supreme Court that the construction adopted by the Court of Appeal in AM (Zimbabwe) was wrong.
  • The Court of Appeal however stated that it saw difficulties in the construction suggested on behalf of the Appellant which appeared to emasculate the alternative limb expounded in D and N and endorsed in Paposhvili, i.e. that there would be an imminent risk of dying. The Court however stated that it was not suggesting that the Appellant’s favoured construction was fanciful or even unarguable.
  • The Court’s position however was that it did not consider that it should give permission to appeal to the Supreme Court (or, indeed, give any encouragement to MV to apply to that court for permission) in his case because of its facts.
  • It was observed that Counsel for MV based his submissions on both limbs of Paposhvili, namely that removal of MV to Sri Lanka would result in (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering and (ii) a significant reduction in life expectancy as a result of an increased risk of suicide. It was considered however that the evidence upon which the submission was based, in respect of each limb, was restricted to that of the psychiatrist. It was very thin.
  • It was noted that the psychiatrist considered that MV’s depression was “severe”, and that his PTSD needed psychotherapeutic intervention which he had not received to the date of the report. At the time of the report, MV was on low dose antidepressants and no psychotherapy. There was no evidence as to whether he had subsequently had his drug regime changed, or undergone any form of psychotherapy; or, if so, whether they have been beneficial. Whilst the report indicated that MV’s mental health symptoms would worsen if he were to be removed to Sri Lanka, the psychiatrist did not appear to consider the position if (as the tribunal found) he would be at no objective risk in Sri Lanka if returned. In the Court’s view, there was no evidential basis for the proposition that, if he were to be returned, excluding the risk of suicide, he would suffer a serious, rapid and irreversible decline in his state of health resulting in intense suffering. Nothing in the psychiatrist report suggested that to be the case. There was no evidence as to the potential effect of an increased drug regime (available both here and in Sri Lanka) upon MV’s symptoms and state of mind.
  • The First Tier Tribunal found that any increase in risk would be insufficient to meet the test in J. In the Court’s view, the available evidence fell far short of showing any real risk that MV’s life expectancy will be significantly reduced (and/or reduced to one to two years) as a result of an increased risk of suicide on removal to Sri Lanka.
  • The Court of Appeal therefore refused MV’s appeal and also permission to appeal to the Supreme Court.
  • The Court made it clear that even if the Supreme Court were to revisit the criteria in N in the light of Paposhvili, that would not assist MV whose application for leave on article 3 grounds, on the evidence before the Court, would be bound to fail in any event.

 

Conclusion

There now appears to be an element of circularity in the Court of Appeal’s recent decisions on Article 3 medical condition cases.

Earlier this year the Court of Appeal concluded in MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018), at paragraph 25 that:

“In the meantime, I shall formally adjourn the application for permission to appeal to this court. In terms of a return date, there are currently three other appeals in which the difference between the criteria in N and those in Paposhvili are in issue, that are listed for Tuesday 30 October 2018 with a time estimate of 2-3 days. I propose that this application for permission to appeal is provisionally listed with those appeals, on a rolled-up basis. The precise time estimate can be considered later, but I am confident that the current estimate of 2-3 days will not be exceeded. Whilst appreciating the enormous workload on the Upper Tribunal, for obvious reasons it would be extremely helpful if the Upper Tribunal were able to determine the question out to them in time for that hearing”.

Apart from acknowledging at paragraph 22 in MM(Malawi) No.2, that the case was to be heard with the appeal in MV which raised similar issues, it is not altogether clear whether the three previously mentioned appeals have now been heard separately or if the Court’s considerations in MM and MV constitute the sum of their resolution of the pressing issues regarding the difference between the criteria in N and those in Paposhvili.

Whilst it may be considered that a suitable case(s) has not yet arisen justifying grant of permission to the Supreme Court, the Court of Appeal appears to be postponing the inevitable. The longer it continues to dither and reiterate the binding nature of its previous decisions upon itself, one case after the other, the more the increase in cases that will continue to come before it seeking to edge closer to the door of the Supreme Court.

New Iraq Country Information Notes: Current key considerations in claims for Humanitarian Protection

An updated Country Information Note on Iraq has now been published: Country policy and information note: security and humanitarian situation, Iraq, November 2018, Version 5.0, 19 November 2018.  This is to be considered in conjunction with the Note published last month: Country policy and information note: internal relocation, civil documentation and returns, Iraq, October 2018.

 

Relevant County Guidance caselaw and other   pertinent cases remain the following:

 

Relevant previous blog posts:

 

The Home Office position is as follows as set out in the updated Country Information Notes and by reference to relevant caselaw:

 

Humanitarian situation

The types of claims that arise are focused on the basis that:

a.That the general humanitarian situation in Iraq is so severe as to make removal to this country a breach of Articles 15(a) and (b) of the European Council Directive 2004/83/EC of 29 April 2014 (the Qualification Directive)/ Articles 2 and 3 of the European Convention on Human Rights (ECHR);

and/or

b.That the security situation in Iraq presents a real risk to a civilian’s life or person such that removal to this country would be in breach of Article 15(c) of the Qualification Directive (serious and individual threat to a civilian’s life or person by reason of indiscriminate violence).

The Country Information Note state:

Since 2015 the international humanitarian response has contracted significantly overall, although it has expanded into some areas as Anbar, Kirkuk, Ninewah and Salah al-Din have become newly accessible. Support efforts concentrate on the most vulnerable. Efforts in Mosul have been significant, with a million people now being helped in the city.

The humanitarian situation is serious, but, according to the UN, no longer one of the ‘most complex and challenging humanitarian emergencies’.

In general, the humanitarian situation is not so severe that a person is likely to face a breach of Articles 15(a) and (b) of the Qualification Directive / Articles 2 and 3 of the ECHR, requiring a grant of Humanitarian Protection (HP).  However, decision makers must consider each case on its merits. There may be cases where a combination of circumstances means that a person will face a breach of Articles 15(a) and/or (b) of the Qualification Directive/Articles 2 and 3 of the ECHR on return. In assessing whether an individual case reaches this threshold, Home Office decision makers must consider:

  • where the person is from (as humanitarian conditions are more severe in some areas than others, and this may also impact on whether the person becomes an IDP on return, if they were not already prior to leaving the country);
  • a person’s individual profile and circumstances, including, but not limited to, their age, gender and ethnicity
  • whether the person can access a support network.

 

Returns to Home areas

  • Since 2015 displacement has significantly declined and there has been a significant increase in people returning to their homes.
  • According to the IOM, as of August 2018 nearly 4 million people have returned to their home areas, a continuing upward trend, particularly to Ninewah, Anbar, Salah al-Din and Kirkuk, explained by improvements in the security situation, although there is some secondary displacement. Return trends are stable in Baghdad, Diyala and Erbil. The vast majority of returnees have gone back to their old homes.
  • The UN High Commissioner for Refugees (UNHCR) reported that government-affiliated armed groups and members of the community prevented some IDPs, particularly from Anbar and Ninewah, from returning to their homes because of their suspected Daesh affiliation.
  • Returnees may face explosive hazards, substandard accommodation and deteriorating public services. The World Bank estimates that it will take at least a decade to rebuild parts of Iraq. However, some rebuilding of affected areas is now taking place.
  • There are some gaps in humanitarian assistance. The UN Humanitarian Response Plan has targeted about 40% of those in humanitarian need. REACH reported that the vast majority of returnee and host community households in accessible areas reported that they have not received humanitarian assistance (although this does not mean that all of those who reported this have been defined as those needing such assistance).

 

Security situation

  • An assessment of protection needs under Article 15(c) of the Qualification Directive must only take place if a claimant is unable to establish a need for refugee protection or subsidiary protection under Article 15(a) or 15(b).
  • A claim for protection based on indiscriminate violence must be assessed by applying the test set out in (QD (Iraq) v SSHD [2009] EWCA Civ 620): “Is there in [country] or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that an applicant would, solely by being present there, face a real risk which threatens their life or person?”
  • In AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC) (30 September 2015), the Upper Tribunal found, based on evidence up to May 2015, that the degree of armed conflict in Iraq did engage Article 15(c) in Anbar, Diyala, Kirkuk (aka Tam’in), Ninewah, Salah al-Din; and the parts of the ‘Baghdad Belt(s)’ (the urban environs around Baghdad City) that border Anbar, Diyala and Salah al-Din (paragraph 204).
  • However, the security situation has changed significantly since May 2015, the point up to which AA(2015) considered evidence.
  • Iraq is still the scene of internal armed conflict. The Government maintains counterinsurgency operations against Daesh (Islamic State), the Sunni insurgency group, who continue to launch sporadic attacks, including on civilians, for example in Hawija, Diyala and Salah al-Din.
  • The nature of much of the violence affects civilians indiscriminately, with Improvised Explosive Devices (IEDs) and shootings the most common forms of violence.
  • However, since 2015, Daesh’s territorial control has collapsed and their operational capability has significantly degraded. The Iraqi government officially declared victory against Daesh in December 2017. The threat from Daesh has not disappeared entirely, but the group are confined to small pockets and the conflict has changed in nature from open conflict to periodic assymetric attacks by Daesh in Anbar, Baghdad, Diyala, Kirkuk, Ninewah and Salah al Din.
  • Iraqi Security Forces (ISF), the Shia militia Popular Mobilisation Units (PMUs) (aka Hashd al Shabi) and the Kurdish Peshmerga have reestablished control over most of Iraq’s territory.
  • The Home Office therefore conclude that there are strong grounds supported by cogent evidence to depart from AA(2015)’s assessment that any areas of Iraq engage the high threshold of Article 15(c). This is  however not to say that the security situation is no longer serious; it is that there is no longer a high level indiscriminate violence anywhere in Iraq such that substantial grounds exist for believing that an applicant would, solely by being present there, face a real risk which threatens their life or person.
  • Even though there is no longer a general Article 15(c) risk, Home Office decision makers must consider whether the person has any circumstances which might nevertheless place them at such risk.

 

Travel documents

The Upper Tribunal in AA(2015) found: ‘The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only … [the person] is in possession of a current or expired Iraqi passport relating to … [the person], or a laissez passer’ (paragraph 204 (5)) and that: ‘No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.’ (para 204(6).

The passport and laissez passer are travel documents and they should not be confused with civil documentation such as the Civil Status ID card (CSID), which enables access to services (although there is a relationship between the two types of documents). If a person has a passport or laissez passer then return is feasible.

If a person does not have a current or expired passport, or a laissez-passer, then return is not feasible. This is a technical obstacle to return, and not a reason itself to grant a person leave.

The central Iraqi authorities state that to obtain a passport, a person (who is 18 or over) needs to go to an Iraqi consulate and present:

  • a Civil Status ID (CSID) and
  • an Iraqi Nationality Certificate (INC) and
  • a Residency card (for those outside Iraq)

An application for a laissez-passer is considered on a case-by-case basis by the Iraqi Embassy in London. The applicant needs to produce:

  • a Civil Status ID (CSID) or
  • an Iraqi Nationality Card (INC) or
  • a photocopy of a previous passport and a report confirming that the passport had been lost or stolen

Iraqi Foreign National Offenders (FNOs) who have served time in the United Kingdom can be issued with a laissez-passer when enrolled onto an interview and documentation scheme run by the Home Office in conjunction with the Iraqi Embassy.

The onus is on the person to provide documentary evidence to substantiate their claim that they are unable to obtain the necessary documentation, for example by a letter from the Iraqi Embassy confirming what was submitted by the person to verify their identity but that their identity and/or documentation could not be confirmed or issued.

 

Internal Relocation- Effect of Lack of Documentation(CSID)

A person may claim that the state of his or her documentation means that they cannot access support.

The Civil Status ID card (CSID) is the key document to enable a person to access services such as financial assistance, employment, education, housing and medical treatment. It is also a gateway to obtaining other documents.

The main issues are whether a person:

(i) can, in general, reasonably relocate elsewhere in Iraq if they are unable to return to their registered place of origin; and

(ii) is at risk of serious harm sufficient to breach Article 3 of the European Convention on Human Rights (ECHR) / Article 15(b) of the Qualification Directive(QD) as result of their lack of documentation; and

(iii) can feasibly return to Iraq (they have the requisite travel documents).

It is unreasonable for any person to relocate to any area of Iraq which meets the threshold of Article 15(c) of the Qualification Directive.

A person who is unable to:

a. replace their CSID; and

b. obtain support from family members or others is likely to face significant difficulties in accessing services and humanitarian conditions which are likely to result in destitution sufficient to amount to a breach of Article 3 of the ECHR / Article 15(b) of the QD. In these circumstances a grant of Humanitarian Protection (HP) will be appropriate.

If a person is

  • unable to obtain a passport or a laissez-passer (i.e. their return is not feasible)
  • unable to obtain documents, including a CSID, and
  • claiming they are at real risk of destitution based on their lack of documents then a person has not established a need for protection and Home Office decision makers should consider the Discretionary Leave (DL) policy and if appropriate, grant a person leave, pending future reviews of their ability to feasibly return to Iraq. These are very specific circumstances. Home Office decision makers must explore whether a person can reasonably obtain a travel document before they find that a person’s return is not feasible.

A person in the above circumstances has not established a need for protection because there is a relationship between feasibility of return and risk arising from a lack of documents: once a person obtains a passport then this will have a positive impact on their ability to obtain a CSID.

A person who can be feasibly returned, and is at real risk of destitution because of a lack of documents, should be granted HP. It should be noted that this is the case for whatever reason the person’s return becomes feasible. However, it is likely that a person whose return is feasible will be able to obtain a CSID. This is because a passport is a route to an CSID. Alternatively, if a person is returned on a laissez-passer (LP) they may already possess a CSID because the CSID is a route to an LP.

In AA(2015), the Upper Tribunal found: ‘As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area [defined as Anbar, Diyala, Kirkuk, Ninewah, Salah alDin and certain parts of the ‘Baghdad Belts’ (the urban environs surrounding the city), specifically the parts bordering Anbar, Diyala and Sala al-Din] to relocate to Baghdad City or….[certain parts of] the Baghdad Belts [not the parts described above]’ (paragraph 204 (14)).

The Upper Tribunal in AA(2015) also observed that, when deciding upon internal relocation to Baghdad and the ‘Baghdad Belts’, decision makers should take into account whether a person:

  • has a Civil Status ID card(CSID) or will be able to obtain one;
  • can speak Arabic (those who cannot are less likely to find employment);
  • has family members or friends able to accommodate them and provide them with assistance;
  • is a lone female (women face greater difficulties than men in finding employment);
  • can find a sponsor to access a hotel room or rent accommodation;
  • is from a minority community;
  • can access any other support bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs [Internally Displaced Persons] (paragraphs 197, 198, 202 and 204(15)

In deciding whether a person can avoid humanitarian conditions that may breach Article 3 of the ECHR it is critical to determine whether they can acquire (or reacquire) identity documentation.

If applicable, Home Office decision makers must determine whether a person can obtain documentation (in particular, the Civil Status ID (CSID). Decision makers are required to  note that obtaining Iraqi civil and travel documentation can be complex and circular. For example, to obtain a passport a person needs a CSID, but they can also use a passport in support of an application for a CSID.

The Upper Tribunal in AA(2015) also found that ‘the process of obtaining a CSID from Iraq is likely to be severely hampered if the person wishing to obtain the CSID is from an area where Article 15(c) serious harm is occurring.

In AA(2015), the Upper Tribunal found: ‘The evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which [a person] … could apply for formal recognition of identity. The precise operation of this court is, however, unclear.’ (paragraph 204 (13).  However, in October 2018, the Iraqi Embassy noted that ‘there is a central register back up in Baghdad that includes all the civil records of all the provenances [sic] in the event of any form of damages or destruction. This civil registration backup (Microfilm) covers all records from 1957.

In September 2018, the Iraqi Ambassador to the United Kingdom confirmed that ‘all the Civil Status Records are preserved and held digitally by each Governorate Directorate of Civil Status Affairs and are accessible to assist in determining a returnee’s identity with reference to the register and page.

In AA(2015), the Upper Tribunal found that the assessment of whether a person would be at risk of destitution because of a lack of a CSID should only be made if return was feasible. However, this position was reversed by the AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 (11 July 2017) (Annex: C 9). Home Office decision makers must now assess the risk arising from a lack of a CSID regardless of ‘feasibility of return’ (whether a person can be returned or not).

 

Place of return

The Upper Tribunal in AA(2015) found: ‘Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad.’ (paragraph 204(5).

The Upper Tribunal in AAH(2018) found that: ‘There are currently no international flights to the Iraqi Kurdish Region (IKR). All returns from the United Kingdom are to Baghdad.’ (paragraph 135 (2)).  However, the Government of Iraq has now lifted the ban on international flights to the Kurdistan region .

The Upper Tribunal in AAH(2018) found: ‘[A person] … is unable to board a domestic flight between Baghdad and the IKR without either a CSID or a valid passport.’ (paragraph 135 (4).  In a letter dated 5 September 2018, the Iraqi Ambassador to the United Kingdom confirmed that a laissez passer or a ‘certification letter’ can be used to board a domestic flight at Baghdad International Airport (BGW). The Home Office believes that as this is official confirmation relating to airport procedures this evidence amounts to very strong grounds supported by cogent evidence to depart from AAH(2018)’s finding explained at paragraph 135(4).

A letter from the Iraqi Embassy dated 2 October 2018 confirmed that the ‘same procedures are applied to all the returnees onward travel from Baghdad to KRG [Kurdistan Regional Government] or any city in Iraq’ and that: ‘Representatives from the repatriation committee would be available at Baghdad International Airport and ready to receive a returnee.

Previously the KRG authorities had responsibility for immigration; this is now centralised with the authorities in Baghdad deciding on immigration matters for the whole of Iraq. Former residents of the KRI who do not return voluntarily are returned to Baghdad, from where they will travel to their destination. Those who are prepared to obtain a travel document can return to the KRI voluntarily, to either Erbil or Sulamaniyah, without having to transit Baghdad.

 

Internal relocation and the Kurdistan Region of Iraq (KRI)

In the Country Guidance case, AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018) heard on 27-28 February 2018 (hereafter ‘AAH Iraq’), the Upper Tribunal examined the humanitarian situation in the KRI and specific findings about internal relocation. The Upper Tribunal found as follows as summarised in the Headnote:

“Section C of Country Guidance annexed to the Court of Appeal’s decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is supplemented with the following guidance:

Whilst it remains possible for an Iraqi national returnee (P) to obtain a new CSID whether P is able to do so, or do so within a reasonable time frame, will depend on the individual circumstances. Factors to be considered include:

  • Whether P has any other form of documentation, or information about the location of his entry in the civil register. An INC, passport, birth/marriage certificates or an expired CSID would all be of substantial assistance. For someone in possession of one or more of these documents the process should be straightforward. A laissez-passer should not be counted for these purposes: these can be issued without any other form of ID being available, are not of any assistance in ‘tracing back’ to the family record and are confiscated upon arrival at Baghdad;
  • The location of the relevant civil registry office. If it is in an area held, or formerly held, by ISIL, is it operational?
  • Are there male family members who would be able and willing to attend the civil registry with P? Because the registration system is patrilineal it will be relevant to consider whether the relative is from the mother or father’s side. A maternal uncle in possession of his CSID would be able to assist in locating the original place of registration of the individual’s mother, and from there the trail would need to be followed to the place that her records were transferred upon marriage. It must also be borne in mind that a significant number of IDPs in Iraq are themselves undocumented; if that is the case it is unlikely that they could be of assistance. A woman without a male relative to assist with the process of redocumentation would face very significant obstacles in that officials may refuse to deal with her case at all.

Section E of Country Guidance annexed to the Court of Appeal’s decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is replaced with the following guidance:

  • There are currently no international flights to the Iraqi Kurdish Region (IKR). All returns from the United Kingdom are to Baghdad. 
  • For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi passport, the journey from Baghdad to the IKR, whether by air or land, is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
  • P is unable to board a domestic flight between Baghdad and the IKR without either a CSID or a valid passport. 
  • P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or valid passport. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor a valid passport there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P’s identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P’s identity documents but may also be achieved by calling upon “connections” higher up in the chain of command.
  • Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There is no sponsorship requirement for Kurds. 
  • Whether P would be at particular risk of ill-treatment during the security screening process must be assessed on a case-by-case basis. Additional factors that may increase risk include: (i) coming from a family with a known association with ISIL, (ii) coming from an area associated with ISIL and (iii) being a single male of fighting age. P is likely to be able to evidence the fact of recent arrival from the UK, which would dispel any suggestion of having arrived directly from ISIL territory.  
  • If P has family members living in the IKR cultural norms would require that family to accommodate P. In such circumstances P would, in general, have sufficient assistance from the family so as to lead a ‘relatively normal life’, which would not be unduly harsh. It is nevertheless important for decision-makers to determine the extent of any assistance likely to be provided by P’s family on a case by case basis.
  • For those without the assistance of family in the IKR the accommodation options are limited: 
  • Absent special circumstances it is not reasonably likely that P will be able to gain access to one of the refugee camps in the IKR; these camps are already extremely overcrowded and are closed to newcomers. 64% of IDPs are accommodated in private settings with the vast majority living with family members; 
  • If P cannot live with a family member, apartments in a modern block in a new neighbourhood are available for rent at a cost of between $300 and $400 per month; 
  • P could resort to a ‘critical shelter arrangement’, living in an unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building. It would be unduly harsh to require P to relocate to the IKR if P will live in a critical housing shelter without access to basic necessities such as food, clean water and clothing;
  • In considering whether P would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give P access to £1500. Consideration should also be given to whether P can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or by being able to access PDS rations.

Whether P is able to secure employment must be assessed on a case-by-case basis taking the following matters into account:

  • Gender. Lone women are very unlikely to be able to secure legitimate employment;
  • The unemployment rate for Iraqi IDPs living in the IKR is 70%;
  • P cannot work without a CSID;
  • Patronage and nepotism continue to be important factors in securing employment. A returnee with family connections to the region will have a significant advantage in that he would ordinarily be able to call upon those contacts to make introductions to prospective employers and to vouch for him;
  • Skills, education and experience. Unskilled workers are at the greatest disadvantage, with the decline in the construction industry reducing the number of labouring jobs available;
  • If P is from an area with a marked association with ISIL, that may deter prospective employers.

 

 

 

 

 

The Supreme Court on the correct approach to parental misconduct and the reasonableness and unduly harsh tests

In relation to the “new” Rules introduced in July 2012 and the new statutory framework set out in Part 5A of the 2002 Act, giving the leading judgement, Lord Carnwath in the Supreme Court, in KO (Nigeria) & Ors v Secretary of State for the Home Department (Respondent) [2018] UKSC 53 (24 October 2018) had the following stinging criticisms to impart:

 

“……….It is profoundly unsatisfactory that a set of provisions which was intended to provide clear guidelines to limit the scope for judicial evaluation should have led to such disagreement among some of the most experienced Upper Tribunal and Court of Appeal judges. Rather than attempt a detailed analysis of all these impressive but conflicting judgments, I hope I will be forgiven for attempting a simpler and more direct approach. I start with the expectation that the purpose is to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute. I also start from the presumption, in the absence of clear language to the contrary, that the provisions are intended to be consistent with the general principles relating to the “best interests” of children, including the principle that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” (see Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, para 10 per Lord Hodge)”.

 

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